State v. Netterville

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 4, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 153State of North Dakota, Plaintiff and Appellee
v.
Milford Earl Netterville, Jr., Defendant and Appellant
No. 20220017
Appeal from the District Court of Richland County, Southeast Judicial District,
the Honorable Bradley A. Cruff, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Tufte, Justice.
Megan E. Kummer, State’s Attorney, Wahpeton, N.D., for plaintiff and
appellee; submitted on brief.
Samuel A. Gereszek, Grand Forks, N.D., for defendant and appellant;
submitted on brief.
State v. Netterville
No. 20220017
Tufte, Justice.
[¶1] Milford Netterville appeals from a criminal judgment revoking his
probation and resentencing him to two years’ imprisonment. He argues the
district court entered an illegal order because the court failed to give him credit
for time served and there was ambiguity in the court’s sentence. We reverse
and remand with instructions.
I
[¶2] In 2020, Netterville pled guilty to domestic violence in violation of
N.D.C.C. § 12.1-17-01.2(2)(c), punishable by a maximum penalty of five years’
imprisonment. The district court sentenced him to 366 days’ imprisonment,
with credit for 99 days, and 18 months of supervised probation to follow upon
his release. In 2021, the State filed a petition to revoke Netterville’s probation
after he failed to report to his probation officer during the months of October
and November 2021. After a probation revocation hearing was held, the district
court revoked his probation and resentenced him to 2 years’ imprisonment with
no probation to follow. He appeals the amended criminal judgment to this
Court.
II
[¶3] In reviewing appeals from a district court’s decision to revoke probation,
this Court applies a two-step analysis. We first review the court’s “factual
findings under the clearly erroneous standard and then review the court’s
decision to revoke probation under the abuse-of-discretion standard.” State v.
Dockter, 2019 ND 203, ¶ 11, 932 N.W.2d 98. A court abuses its discretion “if it
acts in an arbitrary, unreasonable, unconscionable, or capricious manner, if its
decision is not the product of a rational mental process leading to a reasoned
determination, or if it misinterprets or misapplies the law.” Id.
1
[¶4] Netterville argues the district court entered an illegal sentence. 1 We
have outlined the procedure for correcting an illegal sentence under
N.D.R.Crim.P. 35.
Rule 35(a)(1), N.D.R.Crim.P., provides, “The sentencing
court may correct an illegal sentence at any time and may correct
a sentence imposed in an illegal manner within the time provided
for reduction of sentence in Rule 35(b)(1).” A sentence is illegal
under Rule 35(a) if it is not authorized by the judgment of
conviction. State v. Raulston, 2005 ND 212, ¶ 7, 707 N.W.2d 464.
We have recognized that an illegal sentence may be contrary to
statute, fail to comply with a promise of a plea bargain, or be
inconsistent with the oral pronouncement of the sentence. Id.State v. Gray, 2017 ND 108, ¶ 17, 893 N.W.2d 484.
[¶5] The State argues that we should decline to consider Netterville’s illegal
sentence argument on appeal because he did not raise this issue below. We
reject this argument. We have previously held that “[a]lthough [the defendant]
did not raise this [illegal sentence] argument below by objecting at sentencing
or through a motion under N.D.R.Crim.P. 35(a), we address the claim because
an objection is unnecessary to preserve a claim of illegal sentence imposed in
a criminal judgment from which an appeal may be immediately taken.” State
v. Thomas, 2020 ND 30, ¶ 16, 938 N.W.2d 897; see also State v. McGinnis, 2022
ND 46, ¶¶ 1, 5, 971 N.W.2d 380 (we considered the defendant’s illegal sentence
argument despite the fact that the appeal was from the amended criminal
judgments and not from the denial of his Rule 35 motion). Therefore, we move
on to address the merits of Netterville’s illegal sentence argument.
III
[¶6] Netterville first argues the district court’s order was illegal because it
was ambiguous. He argues the court “issued an ambiguous oral
1 Netterville argues an illegal order was also entered in 39-2020-CR-0313, an offense which runs
concurrently with the sentence in 39-2020-CR-0468. Because Netterville only appealed the judgment
in -0468, our review is limited to this judgment on appeal.
2
pronouncement and subsequent judgment” because the oral pronouncement is
susceptible to differing interpretations. Specifically, he argues the “court’s oral
pronouncement could be interpreted to articulate Netterville was to serve an
additional two years to what he has already served” or it “could have been to
simply impose the original recommended sentence by the State of two years.”
[¶7] “[A] sentence is ambiguous if its pronouncement is susceptible of
differing interpretations based on the totality of the circumstances.” State v.
Rath, 2017 ND 213, ¶ 13, 901 N.W.2d 51 (citation omitted). When an
unambiguous oral pronouncement of a sentence directly conflicts with the
written judgment, we have said the oral pronouncement must control. Id. at
¶ 7 (citation omitted). “[I]f only an ambiguity exists between the two sentences,
the record must be examined to determine the district court’s intent.” Id.
(citation omitted).
[¶8] There is no conflict between the oral pronouncement and the written
judgment, nor are there differing reasonable interpretations. After the State
requested “Netterville be resentenced to the Department of Corrections and
Rehabilitation for 3 years and terminate his probation,” the court orally
pronounced:
THE COURT: ..things of that nature. So basically on the testimony
here provided today so 2 years with DOCR and..
MR. NETTERVILLE: ..your Honor please. Your Honor..
THE COURT: ..with no probation to follow.
Further, the judgment states: “Committed to: Department of Corrections and
Rehabilitation, Term: 2 years.” We see no ambiguity in either the oral
pronouncement or the written sentence. The oral pronouncement and the
written judgment both clearly articulate that Netterville is sentenced to 2
years’ imprisonment in addition to the 366 days he previously served on the
original sentence. Thus, we conclude the district court’s sentence is
unambiguous.
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IV
[¶9] Netterville also argues his sentence was illegal because the court failed
to provide him with credit for time served. He argues that he was entitled to
credit for the 366 days he served with the Department of Corrections on the
original sentence; however, the amended criminal judgment failed to state this
credit. Section 12.1-32-02(2), N.D.C.C., provides:
Credit against any sentence to a term of imprisonment must be
given by the court to a defendant for all time spent in custody as a
result of the criminal charge for which the sentence was imposed
or as a result of the conduct on which such charge was based. “Time
spent in custody” includes time spent in custody in a jail or mental
institution for the offense charged, whether that time is spent prior
to trial, during trial, pending sentence, or pending appeal.
[¶10] The State, on the other hand, argues Netterville is not entitled to credit
for time served on the underlying criminal charge because “[a] probation
revocation is a new matter.” In other words, because Netterville served the 366
days on the original sentence, he is not entitled to credit for that time served
on the probation revocation sentence. We reject this argument. We recognize
that a defendant is not entitled to credit “for time served in connection with
wholly unrelated charges based on conduct other than for which the defendant
is ultimately sentenced.” State v. Eugene, 340 N.W.2d 18, 35 (N.D. 1983). Here,
however, Netterville’s probation was revoked, and on resentencing he seeks
credit for time served on the original sentence. Unlike the unrelated charges
in Eugene, a sentence resulting from probation revocation is wholly related to
the original charge because it is based on the same conduct for which the
defendant was originally sentenced. An amended judgment revoking probation
and resentencing a defendant is not a “whole new process” leading to a
“separate judgment” as the State argues, but instead simply amends and
replaces the initial judgment.
[¶11] An amended judgment entered after revocation must total up all time
served for the offense, including time served on the original sentence and time
served prior to the revocation hearing, to ensure a defendant does not serve
more than the maximum possible sentence for the offense. Because section
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12.1-32-02(2) requires a judgment to reflect “all time spent in custody as a
result of the criminal charge,” the amended judgment should have reflected
credit for 366 days served on the original sentence. Importantly, the amended
judgment should also have included the length of the original sentence.
Inclusion of the credit served on the original sentence would not give
Netterville “a bonus 366 days of credit” so long as the district court includes all
time sentenced along with all time previously served. It is clear the intended
sentence was described in terms of the net sentence left to serve, but the
statute requires that be expressed in terms of all time sentenced less credit for
time already served as a result of that criminal charge.
[¶12] Further, the record does not indicate there is any credit owed to
Netterville for time served after the petition to revoke probation was filed. It
does not appear that Netterville was ever arrested or spent any time in custody
during the pendency of the probation revocation hearing. Although a warrant
to apprehend was issued after the petition for revocation was filed, Netterville
appeared on his own recognizance. Therefore, we conclude that the judgment
should have reflected a sentence of 3 years plus 1 day with credit for 366 days
served. Thus, we remand for the district court to correct the judgment to
accurately describe the sentence.
V
[¶13] We reverse the judgment and remand with instructions to correct the
judgment consistent with this opinion.
[¶14] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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